Protest Decisions

January 9, 1998

VIA UPS OVERNIGHT

James P. Hoffa

January 9, 1998

Page 1

James P. Hoffa

2593 Hounds Chase

Troy, MI  48098

Mario Ferenac, Pres.

Teamsters Local Union 385

126 North Kirkman Road

Orlando, FL  32811

Jack Barmon

Legal Department

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

Bradley T. Raymond, Esq.

Finkel, Whitefield, Selik,

  Raymond, Ferrara & Feldman

32300 Northwestern Highway

Suite 200

Farmington, Hills, MI  48334

Paul Alan Levy, Esq.

Public Citizen Litigation Group

1600 20th Street, NW

Washington, DC  20009

Ron Carey Slate

c/o Susan Davis, Esq.

Cohen, Weiss and Simon

330 West 42nd Street

New York, NY  10036

Ken Paff

Teamsters for a Democratic Union

7435 Michigan Avenue

Detroit, MI  48210

David L. Neigus

Deputy General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, NW

Washington, DC  20001

James P. Hoffa

January 9, 1998

Page 1

Re:  Election Office Case No. PR-043-LU385-SCE

Gentlepersons:

James P. Hoffa, a candidate for general president, 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 the officers of Local Union 385, Local Union 385 Business Agent Jack Barmon, the IBT, Teamsters for a Democratic Union (“TDU”) and the Carey Slate.  Mr. Hoffa alleges that (1) Local Union 385 paid for the travel, housing and lost work time of a number of its members who attended the TDU annual convention (“convention”), which the protester claims was a campaign rally for Mr. Carey; (2) TDU failed to put contribution limitation disclaimers on flyers handed out at the convention; and (3) either the IBT or Local Union 385 is improperly subsidizing the Carey Slate campaign by paying the salary of Mr. Barmon.

James P. Hoffa

January 9, 1998

Page 1

Local Union 385, TDU and Mr. Barmon deny the allegations.  They assert that the TDU Convention was not a campaign event, that no convention-related expenses were paid for with local union funds and that Mr. Barmon took an unpaid leave of absence in order to attend the convention.

This protest was investigated by Regional Coordinator J. Griffin Morgan.

Local Union 385 members Lynn Edwards, David Gaskins and Ellyn Haar, along with Business Agent Barmon, attended the convention held in Cleveland, Ohio from November 21 to November 23, 1997.  In the past, Local Union 385 has requested employers to excuse members from work in order to attend union-related conventions and conferences, such as the Teamsters National Black Caucus Conference and the Women’s Conference.  Local Union 385 President Mario Ferenac stated that the TDU convention presented educational opportunities to members and therefore is similar to the other conferences.[1] 

Mr. Ferenac consulted with the IBT legal department about requesting employers to excuse members from work.  He was told that he could ask employers to excuse members from work to attend the convention, but that the local union should not pay the costs of those members attending the convention or reimburse them for their lost time.

Based on this advice, no local union funds were used to pay or reimburse the costs of Local Union 385 members.  Mr. Barmon did send a letter to the employers of the three members requesting that they be excused from work for union business on Friday, November 21, pursuant to the terms of their collective bargaining agreements.  No evidence was presented, however,  that Mr. Barmon arranged any “loss of time” payments for the members at issue.  Furthermore, Local Union 385 provided documentation which showed that Mr. Barmon took an unpaid leave of absence in order to attend the convention.

James P. Hoffa

January 9, 1998

Page 1

During the investigation, Richard Leebove, as a witness for the protester, stated that Local Union 385 paid for the airfare and the hotel expenses of Mr. Barmon and the three members with a Local Union 385 credit card.  He provided no documentation or witnesses to substantiate this allegation.[2]  That alone provides a sufficient basis to deny the protest.  Nevertheless, the Election Officer interviewed the charged parties, obtained copies of their personal credit card records, obtained copies of Local Union 385's business credit card records, interviewed Local Union 385's office manager, and interviewed the travel agent used by Local Union 385 that the witness claimed had made the arrangements.  The individuals’ documentation showed that they had used personal credit cards for all convention-related expenses.  The Local Union 385 records showed that none of the costs for transportation, lodging, or registration were paid for by the local union.  Finally, the travel agent stated that she had not made any of the travel, hotel, or other arrangements for Local Union 385 members in connection with the TDU convention, nor did the travel agent receive any money from Local Union 385 to pay for any such expenses.

With respect to the protester’s allegation that TDU failed to maintain the appropriate disclaimers on its convention flyers, the protester fails to specify any flyer with the claimed defect.  This claim therefore fails for lack of evidence.

In any case, the protester misinterprets the discretionary nature of the Advisory’s disclaimer recommendation.  Under Article XII, Section 1(b)(9) of the Rules, candidates are strictly liable to ensure that the source of each contribution received is proper.  Throughout the election period, the Election Officer has strongly advised that candidates utilize a disclaimer on all fundraising literature.  Under the Rules and the Advisory, however, the use of such a disclaimer is voluntary.  Carey, PR-022-RCS-NYC (November 3, 1997).

Finally, the protester presents no evidence that Local Union 385 or the IBT is subsidizing the Carey Slate campaign by paying the salary of Mr. Barmon.

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:

Kenneth Conboy, Esq.

Latham & Watkins

885 Third Avenue, Suite 1000

New York, NY  10022

Fax (212) 751-4864

James P. Hoffa

January 9, 1998

Page 1

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 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

J. Griffin Morgan, Regional Coordinator