Protest Decisions

              May 26, 1998

VIA FACSIMILE

Kenneth Conboy, Esq.

Latham & Watkins

885 Third Avenue, Suite 1000

New York, NY  10022

Re:  Election Office Case No. PR-056-LU986-EOH

        Supplemental Statement on Remand

Dear Judge Conboy:

On April 27, 1998, the Election Officer issued a ruling that Mary Lou Salmeron, a candidate for International Trustee on the Hoffa Slate in the initial and rerun elections, had violated the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by, inter alia, coercing campaign contributions from employees of IBT Local Union 986 who worked under her supervision.  Moriarty, PR-056-LU986-EOH.  These contributions were collected by payroll authorization, and direct payment, to the Local Union 986 Business Agents Fund (“BA Fund”) and a successor fund (“the Fund”).  After a written submission from Ms. Salmeron’s counsel and a hearing on May 12, 1998, the Election Appeals Master remanded this case to the Election Officer as follows:

The Election Officer’s decision did not anticipate and does not address, many of Ms. Salmeron’s appeals issues.  Furthermore, it appears, on the critical credibility question upon which Ms. Salmeron was disqualified from candidacy for international office, that the Election Officer relied solely upon the record of sworn testimony taken of some relevant witnesses by the Independent Review Board.  The Election Officer did not interview them, and rejected the testimony of others, also without interviewing them.

This matter is, accordingly, remanded for a full response of the Election Officer to the matters raised in Ms. Salmeron’s appeals submission.

In re Moriarty, 98 - Elec. App. - 351 (KC) (May 19, 1998) at 1-2.

Kenneth Conboy, Esq.

May 26, 1998

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The Election Officer has reviewed the investigative record.  This statement is submitted in further support of the Election Officer’s ruling in Moriarty that disqualified Ms. Salmeron from participating in the rerun election.

I.              Procedural Arguments Raised by Ms. Salmeron

Ms. Salmeron has raised four interrelated procedural arguments which she contends should have barred the Election Officer from making a decision on the allegation of coercion:  the allegation of coercion was not in the protest filed by Mr. Moriarty; the claim of coercion is foreclosed by the Election Officer’s decision in Rockstroh, P-764-IBT-EOH (July 11, 1996); the allegation of coercion is untimely; and Ms. Salmeron had no notice of the allegation of coercion.  The Election Officer believes that none of these procedural arguments have merit, and addresses each of them separately below.

1. The Necessity of a Protest

Article XIV, Section 4 of the Rules explicitly states that the Election Officer may take appropriate remedial action “[i]f as a result of a protest filed or any investigation undertaken by the Election Officer, with or without a protest, the Election Officer determines that the Rules have been violated.”  (Emphasis supplied.)  Therefore, the Election Officer has the authority to address a violation of the Rules, even in the absence of a protest, “in order to remedy misconduct that [he] believes frustrates the Consent Decree’s goals.”[1]  Shanahan, P-397-LU317-PGH (February 6, 1996), aff’d, 96 - Elec. App. - 91 (KC) (February 20, 1996).  As the Election Appeals Master stated in In re Carey Slate, 97 - Elec. App. - 322 (KC) (November 17, 1997), at 7, “the Election Officer has often interpreted the Election Rules as giving . . . plenary authority to investigate possible violations sua sponte, without regard to the complainant burden rule in Article XIV, Section 1.” 

Kenneth Conboy, Esq.

May 26, 1998

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In In re Carey Slate, the Election Appeals Master stated that “rules violations in the nullified election broadly implicate the integrity, credibility and fairness of the rerun election, and, if of sufficient seriousness, could warrant disqualification of a candidate.”  Therefore, despite objections to timeliness, the Election Appeals Master concluded that “the Carey Slate protest [against James P. Hoffa and members of his slate] must be thoroughly and convincingly investigated” by the Election Officer.  It was in the context of this overall investigation of the Hoffa Slate that the Election Officer received and investigated the allegations of coercion by Ms. Salmeron.  See In re:  Carey Slate, PR-035-EOH (Post-47-EOH) (April 27, 1998) at 111, n. 58.  Thus, established Election Officer precedent and practice shows that there was no procedural bar to the investigation of the coercion allegation.

2. The Election Officer’s Decision Regarding the Allegation of Coercion is Not Foreclosed by Rockstroh

Ms. Salmeron also argues that the claim of coercion is foreclosed by the Election Officer’s investigation and decision in Rockstroh.  In Rockstroh, the Election Officer found that the creation of local union “funds” in Local Unions 20 and 986 violated the Rules because, through the mechanism of wage authorizations, local union resources were being used to raise campaign contributions.  The Election Officer noted that creation of such funds is “also troublesome because of the potential for coercion of contributions,” but that she found no such evidence in that protest.  As Rockstroh states, the Election Officer only looked at the 15 to 20 business agents who had contributed to the BA Fund.  The allegation of coercion of the clerical employees was neither raised by the protest nor investigated.  Rockstroh, therefore, simply did not encompass the issues raised by Ms. Salmeron’s alleged coercion of donations from her subordinate workers.  Furthermore, the Election Officer is never foreclosed from conducting an investigation if he believes it is necessary to remedy any misconduct which could frustrate the Consent Decree’s goals.  See Shanahan, supra.

3. The Election Officer has Discretion to Investigate an Allegation Even if it is Untimely

Ms. Salmeron also states that the allegation of coercion is untimely.  This procedural assertion was fully addressed by the Election Appeals Master in In re Carey Slate, at 6:

“[T]he Election Officer has never treated the time limits in the Election Rules as jurisdictional requirements.” Cheatem, 97 Elec. App. 322, at 14.  Instead, the Election Officer has treated the time limits set forth in the Rules for filing protests as “prudential restrictions.” . . . .

Consistent with the Election Officer’s treatment of several other alleged serious violations, concerns with timeliness should be subordinated to the extremely serious nature of this protest.

(Citations omitted.)

Kenneth Conboy, Esq.

May 26, 1998

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4. Notice of the Coercion Allegation

Finally, Ms. Salmeron argues that she did not receive notice of the allegation of coercion, and thereby was denied the opportunity to present evidence to the Election Officer.  Prior to issuing the decision, on April 3, 1998, the Election Officer sent a letter to George A. Pappy, Esq., counsel to Ms. Salmeron, specifically advising him that the Election Office was conducting an additional investigation into an allegation that the employees of the local union were coerced into giving money to the BA Fund and the Fund to support Ms. Salmeron’s campaign.  A copy of that letter is attached.  The letter provided Ms. Salmeron with notice of the allegation and an opportunity to present evidence and legal argument to the Election Officer.  Ms. Salmeron used that opportunity, and Mr. Pappy made a written submission to the Election Officer on her behalf on April 9, 1998.  Finally, the evidence relied upon was set out in the decision and that afforded Ms. Salmeron the opportunity to address it on appeal.

II.              Evidence Supporting the Election Officer’s Finding That Salmeron Coerced                             Contributions From Her Subordinates

A.              Introduction

The Election Officer found that Ms. Salmeron coerced clerical employees at Local Union 986 who worked under her supervision to donate money to her campaign for IBT International Trustee.  Ms. Salmeron’s coercive conduct became manifest in two distinct time periods.  First, in October 1995 she concocted and implemented a plan to make the clerical employees contribute cash in support of her campaign through a payroll authorization to the Local Union 986 BA Fund.  Indeed, there is no dispute between Ms. Salmeron and the coerced employees concerning the basic facts of a group meeting conducted by Ms. Salmeron and Local Union 986 Secretary-Treasurer Michael Riley in the union offices during work time, at which Ms. Salmeron announced her candidacy and simultaneously discussed contributions to her campaign through a payroll authorization.  Second, in the fall of 1996, in order to hold on to contributions improperly collected through the Local Union 986 payroll authorizations, Ms. Salmeron refunded the BA Fund contributions to the clerical employees with an instruction that they were required to contribute that money again to a new “Fund” administered outside of the local. 

The Election Officer considered the overall circumstances relating to both incidents.  Regarding October 1995, while it is not improper per se for a superior to request campaign contributions from a subordinate, the overall circumstances, even as testified to by Ms. Salmeron, of a campaign appeal made to the group of clerical employees in a work setting constitutes evidence of coercion.  Sworn statements from the employees, including some who professed support for Ms. Salmeron, further support the Election Officer’s finding that the employees did not make these contributions voluntarily.  Regarding the events of the fall of

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May 26, 1998

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1996, while Ms. Salmeron testified that she told the employees that they could use the refunds from the Business Agents Fund as their own money and dispose of it as they determined, the weight of the evidence contradicts that claim.  None of the employee-witnesses corroborated Ms. Salmeron’s account, and all but one of those witnesses testified that the refund came with an explicit instruction to write a check to contribute the money to a new Fund.  Failure to make that further contribution promptly was followed up, by Ms. Salmeron, until the employee gave up the money to the Fund.

B.              Ms. Salmeron’s Coercion of Contributions in October 1995

1.               Background

The Election Officer considered the context in which Ms. Salmeron sought contributions in reaching his conclusion that she had coerced her subordinate employees.  Three points of background deserve emphasis. 

First, the Local Union 986 Business Agents Fund, first organized in the 1980s, was known as a vehicle for collecting money for contributions to union election campaigns.  In the 1996 IBT International Officer election, the BA Fund openly supported the Hoffa Slate.  Thus, Local Union 986's Secretary-Treasurer and principal officer Michael Riley described the BA Fund as being established “to have available funds in the event of an election in the local

union . . . .  We have used it for political contributions.  We have used it for the Durham campaign, for the Hoffa campaign.”  Riley Tr. at 11.  Ms. Salmeron testified that the BA Fund had “always” been used to help people when they were running for union office.  Salmeron IRB Tr. at 24-25.  The clerical employees also understood, when they were contributing to the BA Fund, that the money was supposed to benefit Ms. Salmeron and the Hoffa Slate.  Thus, one witness testified to her understanding that the BA Fund was a “slush fund” to collect money for the Hoffa campaign.  Mata Tr. at 13-14.  A second witness testified that she understood that the contributions were made to the BA Fund “for political reasons” in connection with union officer campaigns.  Lopez Tr. at 9-10.  A third witness testified that Ms. Salmeron had told her that the BA Fund money “that was in there was to help Mary Lou for her campaigning because she is running on the IBT ballot with Jimmy Hoffa . . . [t]hat’s what I understood it was for.”  Candelaria Tr. at 14.  As Ms. Salmeron herself testified, “it was going to go to the B.A. Fund and initially to my campaign.”  Salmeron EO Tr. at 32.  See also Salmeron EO Tr. at 30-31 (the clerical staff gave her money “directly” through the BA Fund).  This evidence provides solid support for the Election Officer’s finding that the BA Fund was a vehicle for union campaign political action.  Whatever other uses may have been made of BA Fund money (e.g., office parties or gifts), the entity’s function as a collection vessel for union officer campaign contributions, and its support for the Hoffa Slate, was known to the clerical staff.

Kenneth Conboy, Esq.

May 26, 1998

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Second, before the 1996 IBT International Officer election, the Local Union 986 clerical staff had not contributed to the BA Fund.  Historically, the Business Agents constituted the body of donors.  When Ms. Salmeron became a Hoffa Slate candidate for International Trustee, she initiated and implemented the plan of putting the Local Union 986 clerical staff into the BA Fund.  Salmeron IRB Tr. at 28-29. 

Third, as of October 1995, the Local Union 986 clerical staff had not received a pay raise for 18 months.  Kyle Tr. at 11-12; Chambers Tr. at 12. 

These background items provide critical context for the October 1995 meeting that Ms. Salmeron and Mr. Riley conducted with the Local Union 986 clerical staff.  The evidence, largely undisputed, shows that Ms. Salmeron’s request for support through the BA Fund was unmistakably political and unmistakably for her campaign’s benefit.  Ms. Salmeron planned to make her request for campaign support at a staff meeting and she ended up presenting it in conjunction with the pay raise announcement.  As the testimony of the clerical workers shows, the request was understood as an order not subject to challenge or question.  Finally, the linkage of the pay raise and the request for campaign support -- whether by coincidence or by design -- conveyed to the clerical employees the message that a failure to support Ms. Salmeron could have adverse consequences. 

2.               Ms. Salmeron’s Testimony

Ms. Salmeron became a candidate on the Hoffa Slate in the latter part of 1995.  Salmeron IRB Tr. at 27-28.  Shortly thereafter, she had the idea of asking the Local Union 986 clerical staff to join the BA Fund.  Salmeron IRB Tr. at 28.  Ms. Salmeron discussed her idea with Mr. Riley, and with Local Union 986 President John Harren, both of whom told her that it was up to her to ask the staff.  Salmeron IRB Tr. at 28-29.  Ms. Salmeron herself decided to request support for her campaign at the next meeting of the clerical staff.  Salmeron IRB Tr. at 29. 

Ms. Salmeron held a meeting of the clerical staff of Local Union 986 as a group in October 1995.  Salmeron IRB Tr. at 29; Salmeron EO Tr. at 34-35.  According to her testimony, she told the staff about their long-awaited pay raise at this meeting.  At the same meeting, she told the staff about her candidacy for International Trustee and asked for financial help with her campaign.[2]  Salmeron IRB Tr. at 29-31; Salmeron EO Tr. at 29-30.  Ms. Salmeron testified that the amount of the check-off contribution was set at $25 per month when, following a secretary’s suggestion of that amount, Ms. Salmeron said that amount was “fine.”  Salmeron IRB Tr. at 35. 

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May 26, 1998

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While Ms. Salmeron testified that nothing was said by her that explicitly linked the pay increase to the request for contributions, she admitted that the raise announcement and the request occurred at the same time at the same meeting and that she affirmatively asked the secretaries to contribute money for the duration of the election.  Salmeron IRB Tr. at 29-31. 

At a minimum, Ms. Salmeron’s own testimony establishes the following facts:

1.  she led a meeting of the clerical staff under her supervision in October 1995;

2.  she had decided in advance of the meeting to ask her supervisees to support her campaign by donating to the BA Fund;

3.  she presented both the information about the raise and asked for contributions to her campaign at the meeting; and

4.  she participated in setting the contribution amount by “adopting” a subordinate’s purported suggestion.

3.               Staff Member Testimony

Members of the Local Union 986 clerical staff were deposed, under oath, by an attorney for the Office of the Chief Investigator of the Independent Review Board in connection with an investigation conducted by that authority.  The Election Office has read those transcripts and analyzed the testimony in light of Ms. Salmeron’s statements about the October 1995 staff meeting.  The staff testimony generally agrees with that of Ms. Salmeron concerning the content of the meeting.  Specifically, the witnesses testify that Ms. Salmeron and Mr. Riley led a staff meeting in October 1995 at the office during work time and that the subjects of the staff raises, Salmeron’s candidacy, and contributions to the BA Fund to support her campaign all came up at the meeting.  Mata Tr. At 10.  The conflict in the evidence concerns the issue of whether contributing money to support Salmeron’s campaign was presented as a voluntary option.  The key testimony from these witnesses is excerpted below.

Five of the Local Union 986 witnesses testified that the matter of contributing to Salmeron’s campaign was presented as a directive, and that they understood clearly that their long-awaited raises were linked to an obligation to contribute to Salmeron’s campaign. 

Eloise Hanson testified that Ms. Salmeron had spoken to the group about the raise and the requirement to contribute to the BA Fund:

Q:              And what did [Ms. Salmeron] tell you about the raise specifically?

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May 26, 1998

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A:              We are giving you a 4 percent raise and Mike would like you girls to contribute $25 to the BA Fund. 

Hanson Tr. at 18.  Ms. Hanson testified as follows on the question of the voluntariness of the BA Fund contribution:

A:               You don’t ask, you are just told in this office.  We didn’t respond other than the fact we thought about -- about we are getting a raise and now we have to give it back.  However, I believe some of the girls questioned it and she [Ms. Salmeron] said well, everybody contributes [to] it, the guys have been doing it for years and Mike wants you girls to start and that was it.  There is no do you want to, would you consider giving $25?  There was no questions asked, we were just told.

Hanson Tr. at 20.  Ms. Hanson testified that the BA Fund contribution was not voluntary, and that she took Salmeron’s instruction to contribute as “an order.”  Hanson Tr. at 21. 

Annette Candelaria gave similar testimony about Ms. Salmeron’s conduct of the October 1995 meeting:

Q:               First let’s start with Mary Lou Salmeron.  What did she say?

A:               Mary Lou, she gets together with the girls.  “Okay ladies, you are asking for a raise, Mike is considering giving you guys a raise but we ask you to contribute to the BA Fund.”  That’s how it was. 

Candelaria Tr. at 16.  According to Ms. Candelaria, Mr. Riley made a similar statement linking their raise to making donations to the BA Fund for Ms. Salmeron’s benefit: 

Q:               What did Mr. Riley tell you about that?

A:               He got all the girls together, he said, “Okay, ladies, we are going to be giving you a raise and we ask that you contribute to the BA Fund to help Mary Lou.”

Candelaria Tr. at 16.  Ms. Candelaria described the presentation as one in which “you had to” donate to the campaign, regardless of whether one supported Ms. Salmeron’s candidacy.  As presented “it wasn’t really a choice.”  Candelaria Tr. at 18. 

Helen Bryant testified similarly to a presentation that explicitly linked the pay raises to BA Fund contributions: 

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May 26, 1998

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Q:               And what happened at the meeting with Mr. Riley and Ms. Salmeron?

A:               They just -- they mentioned to us about contributing to the fund due to a raise that we were receiving. 

Bryant Tr. at 11.  Ms. Bryant further testified to the pressure that this presentation generated on the staff to go along with request for contributions: 

Q:               Did you feel that if you didn’t contribute to the BA Fund that you wouldn’t get the raise?

A:               Me personally?  I kind of got that feeling, yeah. 

*              *              *              *

Q:               Did you feel a little uneasy that the raise was mentioned in connection with contributing to the BA Fund?

A:               Uh-huh.

Q:               Did you feel that was inappropriate?

A:              Yes. 

*              *              *              *

Q:              [Do you feel that your colleagues felt] threatened [to give to this BA Fund]?

A:               It’s hard to -- you know, it’s really hard to put.  It’s not like you’re threatened but they put it in such a way that you are real uneasy about saying no. 

Bryant Tr. at 13-14. 

Anne Kyle provides further testimony that Ms. Salmeron and Mr. Riley presented the raise and the requirement to contribute to the BA Fund as a linked proposition:

Q:               How did you learn about [the BA Fund]?

A:               We had been requesting a raise and finally our . . . secretary treasurer . . . agreed to give us a raise but we would have to contribute the $25 to the Business Agents Fund. 

Kyle Tr. at 9-10.  In describing the conduct of the staff meeting at which Ms. Salmeron and Mr. Riley made the presentation, Ms. Kyle testified as follows:

Q:               . . . .  What exactly did he say?

A:               To the best of my memory, it was that I want you girls to contribute $25 to the Hoffa campaign.  I think that’s how I remember it. 

Q:               And did he condition -- and what did he say about the raise?

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May 26, 1998

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A:               And that this was why we were getting -- the raise and the contribution were like the same time. 

Q:              Did he say that if you didn’t contribute to the Hoffa campaign that you wouldn’t get the raise?

A:               I don’t recollect him saying -- recall him saying that.

Q:               Did you feel that if you didn’t contribute that you would not get the raise?

A:              I absolutely felt that.

Kyle Tr. at 14-15.[3] 

Finally, Irene Mata testified to the same facts.  According to Ms. Mata, Ms. Salmeron addressed the group meeting of the clerical staff.  At that meeting “it was just told to us [by Ms. Salmeron] that we were going to get a 4 percent raise and that Mike Riley would like us to contribute to the Hoffa campaign.”  Mata Tr. at 10.  Ms. Mata knew that these contributions were really for the benefit of Salmeron’s campaign.  Mata Tr. at 14-15.  Addressing the issue of voluntariness, Ms. Mata stated that no one ever told her that contributing was a matter of choice, and that her participation was not voluntary.[4]  Mata Tr. at 17, 28. 

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May 26, 1998

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Three witnesses did testify that the BA Fund was presented as a voluntary option at the October 1995 meeting.  Teresa Chambers testified that Ms. Salmeron and Local Union 986 President Harren discussed with the secretarial employees the prospect of joining the BA Fund, and that staff raises were not discussed at that meeting.  Chambers Tr. at 10-12.  She stated that her colleagues willingly joined the BA Fund to support Salmeron’s candidacy.  Carol Ann Collin gave testimony similar to Ms. Chambers.  A third witness, Carmen Lopez, testified that Mr. Riley discussed the pay raise and contributions to the BA Fund at the same meeting, but she denied that there was any link between the two and stated that she had participated in the fund voluntarily. 

In reviewing all of the testimony, the Election Officer credits the testimony of Hanson, Candelaria, Bryant, Kyle and Mata that Ms. Salmeron presented the pay raise and the request to contribute to the BA Fund at the same time, and that the request coerced the contribution.  Their testimony about the content of the meeting accords with that of Ms. Salmeron in important respects.  Most significantly, Ms. Salmeron and the witnesses who testified to coercion agree that both the raise and the campaign contributions were discussed at the same meeting.

In contrast, Ms. Chambers and Ms. Collins did not recall important aspects of the October 1995 meeting that Ms. Salmeron admits occurred.  They deny that raises were ever mentioned at the same meeting where Ms. Salmeron announced her candidacy.  Without speculating on the motives of the witnesses, or of Ms. Lopez, the Election Officer has determined to credit the more complete accounts given by the employees who testified to coercion.

C.               Ms. Salmeron’s Coercion of Contributions in the Fall of 1996

In his decision in PR-056, the Election Officer referred to payments made in the fall of 1996 to establish the new Fund as successor to the BA Fund.  He stated:

In October 1996, the B.A. Fund was disbanded by order of the Election Officer and the Fund was established.  The payroll deduction ceased, the money in the B.A. Fund was paid out to its participants and the B.A. Fund closed the original bank accounts.  Mr. Harren and Ms. Salmeron had the majority of participants from the B.A. Fund contribute checks to the new Fund in the same amounts returned to them from the B.A. Fund.

Moriarty at 4.

The Election Officer’s review of the evidence on this issue further demonstrates coercion by Ms. Salmeron in soliciting contributions to the Fund when she returned monies to the clerical employees from the BA Fund.  In her sworn testimony to the Independent Review Board, Ms. Salmeron engaged in the following exchange regarding this matter:

Q:              Were there any instructions given to individuals who received these checks?

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May 26, 1998

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A:              Yes.

Q:              What were those instructions?

A:              They had to return the check, but it was their own personal check because they were -- they could no longer be on payroll deduction.  So it was kind of an exchange of checks.

Q:              So when an individual received a check back from the BA Fund, were they told that they could keep this check to do with what they wished, or were they told to recontribute it to the new BA Fund?

Q:              MR. PAPPY:              Or were they told something else?

Q:              BY MR. SAVCI:              What were they told?

A:              Well if I remember correctly, we were returning the money because they had ruled that we couldn’t do payroll deduction.  So then they just gave us – the same amount of check that was given to them they gave as their personal check.

*              *              *              *

Q:              Were you given a choice about whether or not you wanted to [put this into the new BA Fund]?

A:              Yes.

Q:              And it was said to you that you can do whatever you want with this check; is that right?

A:              Right.

Salmeron IRB Tr. at 54-56.

Six of the witnesses refute Ms. Salmeron’s statement that the employees could freely decide what to do with their BA Fund “refund.”[5]  These six clerical employees testified that Ms. Salmeron, their supervisor, clearly instructed each of them to write a personal check to the Fund for the same amount as the check that each had received from the BA Fund. 

Thus, Irene Mata stated, “We were given the moneys back that we – that we donated under the BA Fund, we were given it back to us and then we had to make out a check.”  Mata Tr. at 22.  In response to the question “What exactly was told to you if you can recall the exact words,” Ms. Mata states: 

I don’t remember exactly but we didn’t have a choice.  In other words, they didn’t say you could keep the money, they didn’t say that.  They said you could write us a personal check. . . .

Kenneth Conboy, Esq.

May 26, 1998

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Mata Tr. at 26.

Anne Kyle stated that Ms. Salmeron gave her the check from the BA Fund and then instructed her to “write another check from my personal account to the BA.”  Kyle Tr. at 22.  During the following questioning, Ms. Kyle was explicit as to the involuntary nature of the donation to the Fund:

Q:                Would you characterize any of those checks that you wrote out after October 17, 1996 as voluntary contributions to the BA Fund?

A:              No.

Q:              And why is that?

A:              Well, I just wouldn’t have written, not just given the check, but it was implied that this is what we’re going to be doing, we are going to write –

Q:                Did you want to keep that $366.15 that was given to you?

A:              Yes, of course.

Q:              Did you ever tell Mary Lou Salmeron or anyone else that you wanted to keep this check?

A:              No.

*              *              *              *

Q:              Did you feel that if you had complained or showed an interest in keeping that money that you would be retaliated against or you would be punished in some way?

A:              Oh, absolutely.

Kyle Tr. at 25-26.

Clerical employee Helen Bryant stated that when Ms. Salmeron gave her the check from the BA Fund she instructed her “[t]hat we were supposed to write her a personal check for that amount of the check she gave us.”  Bryant Tr. at 17.  When Ms. Bryant was asked whether she felt she could keep the check for her personal use, she responded no, that Ms. Salmeron gave her specific instructions and was her immediate supervisor.  Bryant Tr. at 18.

Eloise Hansen stated that Ms. Salmeron told her “that the IBT had stopped the local from collecting the BA Fund money from our checks so they were going to return the moneys to us but in turn we were to make a check out, a personal check out to them for the same amount.”  Ms. Hansen stated she had no choice and it was not voluntary.  Hansen Tr. at 28. 

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May 26, 1998

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Annette Candelaria stated that Ms. Salmeron told her that “we are going to give you back a check and you will just write a check back in the same amount.”  Candelaria Tr. at 27.  She stated that the clerical employees were not given a choice of keeping the money.  Indeed, Ms. Candelaria stated that when she did not write a personal check right away, Ms. Salmeron came to her and asked her for the check.  Candelaria Tr. at 28. 

Carmen Lopez, the bookkeeper, stated that when she received the check from the BA Fund, she was instructed “to return the same amount with my own personal check written out to the BA Fund.”  Ms. Lopez further stated that she was not told she could keep the money for herself.  Lopez Tr. at 18.

Teresa Chambers stated that she recalled writing out a check to the new account called the Fund in the same amount as the check she received from the BA Fund and corroborated the other witnesses statements that the clerical employees were not told that they could keep the money.  Chambers Tr. at 21, 22.  The only other clerical employee deposed by the IRB, Carol Ann Collin, could not recall receiving any check from the BA Fund or writing a personal check to the Fund.  Collin Tr. at 27, 28.

Of the clerical employees deposed by the IRB the following facts emerge regarding donations to the Fund:  1) when each woman received the check, she was instructed by Ms. Salmeron[6] to write a personal check to the Fund; and 2) each woman, with the exception of Ms. Collin who could not recall receiving a check, testified that she was not given a choice to keep the money. 

III.              Evidence Concerning Ms. Salmeron’s Control of the BA Fund

Ms. Salmeron disputes the Election Officer’s finding that she controlled the Fund.  The Election Officer found that due to the control exercised by Ms. Salmeron over the Fund, it was not an independent committee, but was a “campaign” committee.  The Rules specifically define independent committees as a person or entity “not controlled by a candidate or slate who/which has accepted any campaign contribution . . .” Definitions, 22.  Unlike campaign committees, the Campaign Contribution and Expenditure Reports filed by independent committees are not reviewable by candidates and slates.  Therefore, the term applies to a select group. 

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May 26, 1998

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Ms. Salmeron does not dispute the Election Officer’s findings, but argues, in essence, that she did not exercise sufficient control for the Election Officer to reach his conclusion.  The Election Officer does not define the term “controlled” so narrowly.  The Election Officer found that Ms. Salmeron, a candidate for International office:  1) signed the CCERs identifying herself as the Fund’s treasurer; 2) tracked the contributors and provided information about those failing to make timely contributions to Mr. Harren in written memorandum; 3) requested payments from late contributors; 4) prepared checks from the Fund accounts for Mr. Harren’s signature; and 5) received virtually all of the monies collected for the benefit of her campaign. 

These findings support the Election Officer’s conclusion that Ms. Salmeron controlled the Fund and that the Fund was a Salmeron Campaign committee, not an independent committee.

IV.              The Conclusions of the Election Officer are Fully Supported by the Evidence

Ms. Salmeron argues that the Election Officer cannot rely on the testimony of the clerical staff to establish coercion because that evidence reflects the witnesses’ subjective reaction to Ms. Salmeron’s statements.  She argues that the evidence cited lacks “objective” facts necessary to support a conclusion of coercion.  This argument should be rejected. 

The evidence cited in the Election Officer’s original ruling, and expanded here, provides an adequate basis on which to find coercion.  It is true, as a general matter that the law will look for objective evidence in cases of alleged economic duress.  “Where the coercion involves economic pressure rather than threat of physical injury . . . an objective element continues to be demanded by the court.”  J. Calamari & J. Perillo, Contracts [3d ed.] at 337 (1987) (analyzing economic duress as a defense to contract enforcement).  The investigative record in this protest contains evidence that, objectively viewed, would lead a reasonable person to conclude that the Local Union 986 clerical employees had been coerced to make donations in favor of Ms. Salmeron’s campaign. 

First, and as conceded by Ms. Salmeron, she requested campaign contributions from her subordinates in a work setting at the same time as she had just informed them of a salary increase.  Standing alone, a reasonable person could conclude that the benefit of a long-awaited salary increase was being linked, explicitly, to a requirement to pay some of that increase back to the campaign of their boss -- the very person who had announced the raise. 

Second, while it is not a violation per se for a superior to request campaign contributions from a subordinate, the situation is particularly perilous.  Indeed, the relationship is considered so inherently coercive that some ethical codes absolutely prohibit public servants from requesting political contributions from subordinates.  See New York City Charter, Sec. 2604(11)(c) (prohibiting public servants from requesting subordinates to pay political contributions); 32 C.F.R. Sec. 84.18(d)(2) (prohibiting civilian Defense Department employees from collecting political contributions from a subordinate).  Here, Ms. Salmeron gathered all of her subordinates together as a group and presented them with her candidacy and the BA Fund contribution “suggestion.”  That environment, in which a subordinate would feel pressured not to challenge the supervisor, or to dissent from an apparent group consensus, reflects the type of situational coercion these rules address.  In this case, Ms. Salmeron did not provide evidence that would lead the Election Officer to conclude that the coercion was neutralized. 

Kenneth Conboy, Esq.

May 26, 1998

Page 1

Third, every witness except for Ms. Salmeron testified that the fall 1996 contributions to the new Fund were not in any sense voluntary.  This evidence shows the extent to which Ms. Salmeron continued to exercise her will over the BA Fund monies through 1996. 

In addition to these elements, the Election Officer has credited the testimony of the clerical employees who testified to being coerced into making these donations.  Their views of Ms. Salmeron’s actions, considered with the objective factors bolsters the Election Officer’s conclusion. 

Finally, Ms. Salmeron argues that disqualification is not an appropriate remedy in this case even if the Rules were violated.  The Election Officer fully discussed the reasons for this remedy in the decision and believes that the facts, as found by the Election Officer, fully support his remedial decision.  Ms. Salmeron’s coercion of her subordinates for the benefit of her campaign is completely inconsistent with an election process which seeks to insure a fair, honest, open and informed election.

For the foregoing reasons, the Election Appeals Master should affirm the decision of the Election Officer in its entirety.

Sincerely,

Michael G. Cherkasky

Election Officer

MGC:chh

Enclosure

cc:              George Pappy, Esq.

Patrick Szymanski, Esq.

Dede Hill, Esq.